(a) Indemnification.
(1) The permittee shall construct, maintain and operate its facilities in a manner which provides protection against injury or damage to persons or property. The permittee, for itself and its related entities, agents, employees and subcontractors, and the agents and employees of said subcontractors, shall hold the Village harmless, defend and indemnify the Village, its successors, assigns, officers, employees, agents and appointed and elected officials, from and against all liability or damage and all claims or demands whatsoever in nature and reimburse the Village for all its reasonable expenses, including attorney fees, as incurred, arising out of the installation and operation of the permittee's system within the streets and rights-of-way, including, but not limited to, the actions of the permittee, its employees, agents, contractors, related entities, successors and assigns, or the securing of and the exercise by the permittee of the permit rights granted in this chapter, including any third party claims, administrative hearings, actions for copyright infringement and litigation, whether or not any act or omission complained of is authorized, allowed or prohibited by this chapter. The terms of each contract awarded by the permittee for activities pursuant to this chapter shall contain indemnity provisions whereby the contractor shall indemnify the Village to the same extent as described above.
(2) The permittee shall pay, and by its acceptance of the provisions of this chapter and any permit issued hereunder, agrees to pay, all actual expenses incurred by the Village in defending itself with regard to all damage and penalties arising in any way out of the exercise of any rights granted hereunder. In the event the Village institutes litigation against the permittee for a breach of the provisions of this chapter or a permit issued hereunder or for an interpretation of this chapter, and the Village is the prevailing party, the permittee shall reimburse the Village for all costs related thereto, including reasonable attorney fees.
(b) Notice. Within thirty days after receipt of the same by the Solicitor, the Village will provide notice to the permittee of the assertation of any claim or action arising out of the exercise by the permittee of its permit rights. The permittee will be permitted, at its own expense, to appear and defend or assist in the defense of such claims. The permittee shall have no recourse whatsoever against the Village for or on account of any loss, cost, expense or damage arising out of the provisions or requirements of this chapter, or the grant of the permit.
(c) Certificate of Insurance.
(1) At the time of the execution of a permit issued hereunder, and annually thereafter, the permittee shall provide to the Village, in accordance with the provisions hereof, a certificate of insurance. The permittee shall maintain public liability and property damage insurance that protects the permittee and the Village, its officers, agents, employees and appointed and elected officials, from any and all claims for damages or personal injury, including death, and demands, actions and suits brought against any of them arising from operations under this chapter or in connection with a permit issued hereunder, in accordance with the subsections below. Coverage during construction shall include those hazards normally identified as X.C.U. This insurance coverage constitutes a minimum requirement and shall in no way be deemed to lessen or limit the liability of the permittee, related entities, its successors or assigns, under the terms of a revocable permit issued hereunder.
(2) The certificate of insurance shall be with a company licensed to do business in the State of Ohio with a rating by Best of not less than "A". This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property resulting from the permittee's automobiles, products and operations. The insurance shall provide coverage at all times for not less than five hundred thousand dollars ($500,000) for bodily injury to any one person and one million dollars ($1,000,000) for property damage in the aggregate per single accident or occurrence, plus costs of defense, or in such other amounts as are acceptable to the Village and as provide substantially equivalent coverage. The following endorsements shall attach to the liability policy:
A. The policy shall cover personal injury as well as bodily injury.
B. The policy shall cover blanket contractual liability, subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage.
C. Broad form property damage liability shall be afforded.
D. The Village and its elected officials, officers, agents and employees shall be named as additional insureds on the policy. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy.
E. Standard form of cross-liability shall be afforded.
F. The policy shall not be canceled or materially altered so as to be out of compliance with the requirements of this section without thirty days written notice of such cancellation given to the Village.
(3) If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this section, the permittee shall provide a replacement policy. The permittee shall agree to maintain continuous uninterrupted insurance coverage in the amounts required.
(4) The Village reserves the right to adjust the coverage limit requirement upward in the event the statutory maximums applicable to local governments are raised and that such increased coverage limit requirements are equally applied to all other permittees of the Village.
(5) Any deductible or self-insured retention must be declared to the Village.
(6) The permittee shall submit to and maintain on file with the Village documentation of the required insurance, including a certificate of insurance signed by the insurance agent and the companies named, as well as all properly executed endorsements. Said certificate shall be subject to the approval of the Village as to the adequacy of the certificate and of the insurance certified under the requirements of this section.
(7) Failure of the permittee to maintain adequate insurance as required under this section shall be cause for immediate termination of the permit by the Village.
(8) Nothing herein contained shall be in any way construed as a waiver on behalf of the Village or any of the protections or provisions of the Ohio Governmental Immunity Act, and the permittee shall ensure that in naming the Village as an insured under this section, all insurance policies or agreements shall specifically contain a non-waiver provision and shall not impair said protection and provisions.
(d) Security.
(1) With respect to the initial construction of the telecommunications and/or other utility system, or any significant project to upgrade or rebuild more than fifty percent of the telecommunications and/or other utility system, the permittee shall provide to the Village a construction performance and construction completion bond (hereinafter referred to as the construction completion bond), with a surety reasonably approved by the Village's Solicitor, in an amount equal to ten percent of the applicable estimated construction cost. Such amount shall not exceed two hundred thousand dollars ($200,000). With respect to the initial construction of the telecommunications and/or other utility system or the upgrade or rebuild project, when regular subscriber service is available to seventy-five percent of occupied dwelling units, the amount of the bond shall be reduced by fifty percent of the original amount. On the one-year anniversary of the initial construction of the telecommunications and/or other utility system or the upgrade or rebuild project, as the case may be, the bond may be canceled.
(2) The permittee shall also deposit with the Village a surety bond or letter of credit in the amount of fifty thousand dollars ($50,000) in a form reasonably acceptable to the Village's Solicitor (hereinafter referred to as the performance bond). The performance bond shall be available to insure the faithful performance by the permittee of provisions of the permit, other than with respect to construction, upgrading or rebuilding projects covered herein. The performance bond shall be maintained at fifty thousand dollars ($50,000) during the entire term of the permit, regardless of withdrawals which may be made under this section. In the event of a default by the permittee in any of its obligations under this chapter, other than completion of construction, which default is not cured within thirty days after notice by the Village to the permittee of such default (or such longer time as is necessary to cure, so long as the permittee commences to cure within thirty days and diligently pursues such cure), the Village may levy on the performance bond upon notifying the permittee of the amount of such charge. The rights reserved to the Village with respect to the performance bond are in addition to all other rights of the Village, at law or in equity.
(Ord. 98-10-11. Passed 10-14-98; Ord. 2020-10-10. Passed 12-1-20.)